Family Law

Is Sperm-Mix Up Case A Harbinger Of Increased IVF Regulation In India -- And Elsewhere?

In the past few decades, courts across the world, including many in the United States, have struggled with these types of claims.

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fertility clinic IVF in vitro fertilization test tube baby babiesThe United States, unfortunately, is not the only country to experience in vitro fertilization (IVF) mix-ups. But the U.S. has had some of the worst cases of it! Such as when a New York couple gave birth to twins, conceived through IVF and believed to be genetically related to the couple themselves. Instead, the twins were neither related to the expected parents, nor to each other!

15 Years To Justice

In June 2023, a ruling in India found decisively against the fertility clinic doctors involved in the treatment of a couple 15 years earlier. The couple had understood that their own genetics were being used to conceive their children. However, a few years after the birth of their twin girls, blood tests revealed that the dad could not be the genetic father of his daughters. The clinic had used someone else’s sperm for the couple’s conception!

The couple filed a consumer complaint in an Indian court against the doctors, alleging negligence and deficiency in service, resulting in emotional stress, family discord, and a fear of genetically inherited diseases.

In the past few decades, courts across the world, including many in the United States, have struggled with these types of claims. Lawsuits against clinics and doctors for IVF mix-ups have frequently been dismissed, often based out of concern that a finding of damages would suggest that one set of genetics has a higher value than other genetics. In this Ohio case, for instance, where the misreading of the sperm donor number led a couple to unexpectedly conceive a child of a different race than theirs, the court dismissed the case. And that result occurred despite the fact that there was no dispute that the fertility clinic used sperm for the patients’ treatment that was not consented to by the conceiving couple.

Since the Ohio case, some courts have developed novel legal theories to reach some measure of justice for victims of fertility clinic mix-ups. One key such case was in Singapore, where a court ruled against a fertility clinic for using sperm other than the expecting dad’s, finding damages based on the “loss of genetic affinity.”

Most recently, on June 16, 2023, the National Consumer Disputes Redressal Commission (NCDRC) in India followed the trend of finding a way to offer recourse for victims and issued a sizable fine against the West Delhi hospital in the amount of 1.5 crore. (Which, thanks to Google, I can report is 15,000,000 rupees, and converts to about $180,000 in U.S. currency.)

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The Commission agreed with the parents that the doctors’ negligence led to the severance of the genetic link between the father and the children, causing parental confusion. The ruling required that the 1.5 crore award go to the children of the couple. For now, the compensation amount will be kept in fixed deposits, in equal proportions, and in the names of each of the twins until they both attain the age of majority. However, the parents are permitted to withdraw periodic interest for the welfare of the children.

The NCDRC also ruled jointly against the doctors involved in the patients’ care, noting that each had attempted to shift blame to the others. These included the director of the clinic, two consultants, as well as the hospital medical director. The NCDRC also noted — in a surprising fact for anyone with intimate knowledge of IVF — that there was no embryologist involved in these patients’ care. Oh really?! Well that seems to be an entirely separate problem on its own.

But given that admission, the order further questioned the handling of egg and sperm samples in the absence of a qualified embryologist and went on to note that gynecologists, without specialized training in IVF, have been engaging in questionable business practices by opening their own fertility clinics, due to the perceived lucrative nature of the field.

Call For Regulation

The NCDRC’s ruling went beyond the case at hand, finding that there is a need to make it mandatory for all fertility clinics to use DNA to profile children born through assisted reproductive technology procedures. Moreover, the NCDRC argued that the National Medical Council and the Ministry of Health and Family Welfare should be looking to curb unethical practices in the growing fertility field through the mandatory accreditation of fertility clinics by the government.

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Will the Indian government follow the NCDRC’s strongly worded advice? If yes, we can expect to see increased regulation of fertility care providers in India. Given the country’s size and depth of fertility care experts, and perhaps depending on the outcome of any such regulation, the direction could be influential for other countries struggling with the serious ramifications of errors in advancing reproductive technology.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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